Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1887-03-17
A VERY IMPORTANT CASE
Applies 60 An Taxes on RnfIroaas
and By Hmplfensaon HnvRlsdmses
All OeuntY nnd Ezaaiosrns Taxes
Thereon.

ApRbhoS 10 Ah hAAeB 19 t~fsttf pMhh
and by Emspltcnsaon snynlsdmses
All Oeunty nnd Ezaaiosrns Taxes
Thereon.
special Correspondsnceof Gazette and journal
DovRn, March g.--As the GAzxTrR
has been notified by wire, the court Of
errors and appeals, at ITS adjourned ses-
sion here this morning, oontifmed the
decree Of the chancellor ID the New
Castle county railroad taxation case.
Judge Houston said that, notwithstaud-
ipg the labored effort of the learned coun-
sci for the appellant TO raise ; doubt as to
the intent and meaning of the not of 1878
and the long array of authorities cited in
support of his contention that it'oould
have no relation to other thsr State taxes,
he had been utterly unable 10 discover
any reasonable ground for such doubt
on perusal of tue act itself. Leading prin-
ciples of construction regard the carrying
out Of the intention of the aushors OF a
written instrument, so fer as it can be
done without infringing on laws Of
superior binding force, and giving TO
words in common use their ordinary
and accepted signihcation, Applying
these rules he had been unable
to discover any room fos donbt
~ TO the intention so clearly e2prAssed IN
the act authorizing the State treasurer to
accept from the railroad company, until
otherwise directed, the annual sum of
$27, 900, to be paid In equal quarterly
payments in lieu of all taxes which may
hereafter become due from said company
under any and all laws of this State, ex-
cept such (capitation) taxes as may be-
come due under the act OF August l1th,
1854. Gould any form Of words or mode
of expression declare In more specific and
unequiyocal terms the meaning and in
tention of the act to be that the said sum
of $27, 900, when paid as aforesaid, should
be in lieu of all, or In exchange of all,
which might hereafter become due from
said company under any and all laws Of
the State, excepting those specifically
exempted? And, furthermore, under the
fifth section of this act, the company
is authorized TO commute for the excepted
taxes by the payment of @1S, 900 annually,
in addition TO the $27,0 above men,
toned; making It the duty Of the State
Treasurer to accept $40, 600 per year in
lieu and satisfaction Of all laws subject
ing it to taxation for the benefit OF the
State or any part of 1t. As the road bed
was then subject as real estate to taxation
for county purposes any such tax assessed
upon it would be clearly subject to the
provisions of the act of 1873. The
language of the act was SO comprehensive
that he could not find any warrant In 1t
for the construction commended for--that
its provisions were not intended to apply
to county taxes or to any other than State
taxes.
Upon the specific Specification of tbs
word impose which had been dis
cussed by counsel, Judge Houston ssid
that, without being hypercritical, it is
sufficient to say that the word Is derived
from the Latin ''impono,n which was ap-
piled in the original to the levying and
collecting of taxes and from which we
derive also the word ''impost" which has
scarcely any other sense than tax. Any
tax authorized by the Legislature for
whatever purpose or however assertained
and fixed, is in effect imposed on the per-
son, whether ii be laid directly or in
directly upon him and IL the word in
this case has any other meaning, it is a
well settled principle of construction that
the meaning which gives the intent of the
parties is the one TO be accepted It was
in the power of the Legislature T., enter
into such an agreement with the COM
pany and the Legislature must have been
satisfied with it as fair and just equiva-
lent. It is to be presumed that the Legis-
lature was satisfied when itpassed the act
that the State needed the money quite as
much If not moro than the county. There
fore the decree of the chancellor should
| be affirmed. n -- ~
Judge Grubb concurred with Judge
Houston. A railroad road-bed is liable
to taxation as real estate unless there is
some principle of law or specific statute
exempting It. Being property owned aud
controlled by individuals it is not exempt
as a public Improvement. Upon exami.
nation of this act it will be found that il
does not impose any tax on the contrary
it provides for discharge of all taxes
| due or to become due under any and all
laws, except that of 1864 for the satisfac-
tory discharge of which further sum OF
communication money is prescribed. The
words "all taxes under any and all laws
| of this State" are surely broad and com.
prehensive enough to include the laws OF
the State providing for and prescribing
county taxation. 1t would be impossible
to find words much more clearly and ex.
| plicitly expressive of this.
But it is argued with great earnestness
and logical skill that the language "suoh
taxes as the Legislature may hereafter
impose upon this company is limited
to taxes designed for the support of the
State government and does not apply t6
those for county purpos5s. The fallacy
of this argument lies in assuming that the
laws Of the State providing for county
taxation are not laws imposing taxes. BY
reference to these laws it will be found
that 1t is made compulsory upon the
assessors to ASSESS and upon the levy
court to lay road, poor and county taxei
and cause the county collectors
to collect the same. Under these pro
visions the duty imposed to collect
county taxes is directly imposed. The
tax is none the less imposed by law than
in the other case and in both it is for Q
public purpose, and, moreover, in bott
1t Is State tax because imposed by law
fui authority and imposed for the State
benefit. This Interpretation of the word
imposed" as here employed ia certainly
| a fair, reasonable and natural one. But
| if 1t were not what would be the result
Simply that the Language is ambiguous
in which case the whole estate would
have to be taken together, for IL isthe duty
of courts so to reconcile different pro.
visions of an act as te make the whole
wherepossible, Consistentand harmonious
According to this rule the language Of
section must be conBtrued in connec
ton with the provisions of section ant
2 in such way as to avoid any inconsist
ency. The rejection of the restricted
meaning of the word '.impose" and the
adoption of the broader and more reason
able general one aecomplishes this. Be,
sides which section 8 is merely saving
clause against this act being construed
as contract. The special reason for th,
stringent construction laws surrenderinE
taxing power does not exist In this case
because It merely suspends taxation il
consideration of specific sum paid il
lieu thereof, yet this act so com pletel,
conforms to the application of the rul'
as to preclude the appellant from seeking
construction of its terms.
The objection that this construction o
the act will bring embarrassment to tn,
county cannot affect the law. That ma,
be remedied by legislation; not by tn,
judiciary, II this Interpretation of tn,
act of 1878 should result in confusion re
lief may be had by application 10 tn,
General Assembly now in session, th,
Legislature of 1878 having expressly re
served the right to repeal or modify th,
provisions of the act of 1873.
Chief Justice oomegys, after stating
the shape in which the case came from
the chancellor and discussing the question
whether the act of 1873 created in an,
sense contract between the State ami
the railroad company, which question b.
decided in The negative, said. 4
"Fhe case then appears TO be this